O'Reilly v DPP
| Jurisdiction | Ireland |
| Judge | JUDGE Ó CAOIMH |
| Judgment Date | 14 July 2004 |
| Neutral Citation | [2004] IEHC 314 |
| Court | High Court |
| Docket Number | 750 JR/2003 |
| Date | 14 July 2004 |
[2004] IEHC 314
THE HIGH COURT
and
Citations:
C (P) V DPP 1999 2 IR 25
M (P) V MALONE 2002 2 IR 560
J (B) V DPP UNREP MCKECHNIE 12.2.2002 2002/13/3243
G (V) V DPP UNREP QUIRKE 30.4.2004
W (A) V DPP UNREP KEARNS 23.11.2001 2001/24/6472
P (P) V DPP 2000 1 IR 403
M (P) V DPP UNREP O CAOIMH 7.5.2004
MURPHY V DPP 1989 ILRM 71
BRADDISH V DPP 2002 1 ILRM 151
DUNNE V DPP 2002 2 ILRM 241
MCKENNA V DUBLIN CIRCUIT COURT & DPP UNREP KELLY 14.1.2000 1999/17/5316
MCNAMARA V MACGRUAIRC UNREP SUPREME 5.7.2001 2003/41/9958
Criminal law - Delay - Sexual offences - Prosecutorial delay - Pre-trial anxiety - Whether real and serious risk of unfair trial - Whether stress sufficient to warrant restraint of prosecution
The applicant sought an order restraining his further prosecution on 52 charges of sexual assault alleged to have been perpetrated on five young school children. The offences were alleged to have been committed in 1997 and 2000. The applicant’s case was grounded upon allegations of prosecutorial delay and a complaint relating to the failure of the Gardai to interview all of the other children in the class as ‘eye witnesses’. The applicant deposed that as a result of the situation his mental and emotional state had deteriorated greatly.
Held by O Caoimh J. in refusing the relief sought that the applicant had failed to demonstrate that the further prosecution would result in a trial in which there was a real or serious risk of unfairness. The stress complained of was not sufficient to warrant the Court interfering.
Reporter: R.W.
APPROVED JUDGMENT DELIVERED BY JUDGE Ó CAOIMH ON WEDNESDAY 14TH JULY 2004
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.
| MR. Justice Ó CAOIMH: | The applicant in this case seeks an order restraining |
his further prosecution by the Director of Public Prosecutions on 52 charges of sexual assault alleged to have been perpetrated on five young school children who were under his care at the time in circumstances where he was engaged in teaching them in a primary school. The offences are alleged to have been committed between 1st December 1997 and 30th June 2000.
The evidence before this court shows that the first formal complaint made to the Gardaí was by the mother of two of the alleged victims in November of 2000 in circumstances where she had previously spoken to a member of An Garda Siochana on 17th June 2000, namely Sergeant Noreen Feeney about the procedures to be followed in the circumstances of a formal complaint being made. Sergeant Feeney indicated under cross-examination that she did not put pressure on the mother of these two girls to make a complaint. She indicated that this lady was anxious and upset. She told her that as soon as they were ready, by which I understand the two girls and the mother, a complaint would be taken off them. She informed this lady, to which I shall refer as Mrs. w, that the Health Board would have to be contacted, and the Health Board had not been contacted at that time. In August 2000 a notification was sent by the Health Board to the Gardaí indicating that it had been contacted.
Sergeant Feeney indicated that when interviewing children one has to operate at their pace. The first two girls interviewed named one other child C.F., who in turn had to be interviewed, and this occurred on 11th January 2001 when a written statement was made. She named in turn another girl, E.N., who made a statement one week later. Independently another child, D.O”.M., made a complaint to the Gardaí at Salthill Garda Station on 24th November 2000. It appears that Sergeant Feeney was not aware at the time of the involvement of the station and it appearsshe liaised with Garda Laura Carr in Salthill Garda station. She further indicated in her testimony that the evidence was a little more complex than the norm, having regard to the number of children and the necessity to liaise with other members of An Garda Siochana and by reason of having to deal with the Western Health Board.
She indicated that it frequently takes five to six months before directions are issued from the Office of The Director of Public Prosecutions but where a person is in custody directions will issue much more quickly and may only take minutes in the context of instructions over the phone, followed by written directions.
With regard to the issue as to whether she receives files back from The Director of Public Prosecutions without requests for further clarification, she said that she does not know if she ever got a file back without such a direction seeking further clarification, unless there was to be no prosecution.
She indicated that she questioned all of those mentioned in any of the statements taken. She indicated that she made a decision not to interview all of the children appearing on the school roll. She indicated that the file prepared by her went to a senior officer and that no suggestion was made that she interview anyone else and no suggestion was made by the Director of Public Prosecutions upon receipt of the file. She indicated that if these people disagreed with her decision that they would let her know.
The witness indicated that one other mother declined to permit her to interview her daughter.
The applicant has sworn an affidavit in which he reveals he received a letter from the Board of Management of the school in August 2000 indicating complaints which he says gave rise to these proceedings. He states in his affidavit at paragraph five as follows:
"I became aware about complaints which gave rise to these proceedings in a letter from the Board of Management during August of 2000 when I was informed of the complaints and of the fact that consideration was being given to my suspension. I was devastated by these allegations and I found it very difficult to deal with these.
I attended upon my General Practitioner, Doctor Day, and told him about the fact that I was under stress but did not discuss the fact of the allegations. I was unable to continue with teaching. I went on sick leave on the basis of a stress-related illness and did not return to the school in September 2000 and was on leave until my retirement.
I spoke to my General Practitioner about my consumption of alcohol and I was referred to St Patrick's Hospital and was hospitalised from 30th January 2001 to 22nd February 2001."
The next paragraph is not in fact paragraph six but reads as paragraph seven in the affidavit and it states as follows:
"After my return from St Patrick's I was interviewed by the Gardaí on the 19th March 2001. I do not know the precise dates or form of the first complaints made to the Gardaí and I do not know how the complaints came to be made. It seems that some notification was given to the Gardaí at the end of June 2000. When I was arrested on the 19th March 2001 I thought that this would at least lead to a resolution of these allegations."
He indicates that after questioning Detective Garda, now Sergeant, Feeney indicated that it could take some months for a decision to come back from The Director of Public Prosecutions and he said that he never thought that it would be in limbo for the next two years.
He indicates that after 19th March 2001 he tried to continue with his life on as normal a basis as he could manage. He indicated that he found it increasingly difficult to visit family and attend mass and that he only went out very occasionally.
He says that he continued to attend on his General Practitioner because of the stress he experienced and he indicates medication that was prescribed to him on 1st August 2001. He says that he had never been diagnosed as having suffered from stress prior to these allegations being made and that he has been taking the medication ever since.
He indicates the position living in a rural area and he says that he and members of his family felt that they were being watched and pointed out. He says that he felt that he was being regarded as a freak in the area. He indicates that he had suffered in the past from high blood pressure and was in the practice of going for walks in the area but he found that he could not continue as time passed. He says that he felt incredible pressure as a result of the situation, people were passing him and did not bid him the time of day.
He states that he always thought he would hear something from the Gardaí, hopefully that it had been decided not to proceed on the charges that he says that he knew to be false but he wanted to be told whatever had been decided to end this time of limbo.
He indicates that he contacted Garda Feeney at some point, and this is a matter of some dispute, as to what was happening to the charges and he states that she told him that she was no longer dealing with the matter but when word came through she would contact him.
He indicates the effect of the situation on his life and the fact that he is not inclined to go out and feels frustrated, helpless and worthless. He indicates that in dealings with his family he has become withdrawn and inactive and often sarcastic or bitter. He indicates that he has sleep disturbances and that his mental and emotional state has deteriorated greatly with the passage of time since 19th March 2001.
He also believes that there is a lot of local knowledge about his identity and he indicated the effect of the situation on his wife. He says that on seeing the Book of Evidence and the material that is disclosed by the prosecution that he is very disturbed and that he still does not know how these complaints first originated.
As I indicated earlier, the...
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